Unassociated Document


    
      Exhibit
        10.2

      Execution
        Copy

    

     

    AMENDMENT
      AND AGREEMENT

    


    AMENDMENT
      AND AGREEMENT, dated as of August 7, 2008 (this “Amendment”),
      in
      respect of the Master Repurchase Agreement, dated as of July 20, 2007 (together
      with Annex I thereto, as both are amended, restated, supplemented or otherwise
      modified prior to the date hereof, the “Existing
      Repurchase Agreement”;
      as
      amended hereby and as further amended, restated, supplemented or otherwise
      modified and in effect from time to time, the “Repurchase
      Agreement”),
      by
      and among ANTHRACITE CAPITAL BOFA FUNDING LLC, as seller (the “Seller”),
      BANK
      OF AMERICA, N.A. (“BANA”),
      BANC
      OF AMERICA MORTGAGE CAPITAL CORPORATION (“BAMCC”;
      BANA
      AND BAMCC, individually and/or collectively, as the context may require, each
      a
“Buyer”
and
      collectively, the “Buyers”),
      and
      BANK OF AMERICA N.A. as agent for the Buyers (in such capacity, the
“Buyer
      Agent”).
      Capitalized terms used but not otherwise defined herein shall have the meanings
      given to them in the Repurchase Agreement.

    


    RECITALS

    


    WHEREAS,
      the Seller, the Buyers and the Buyer Agent are parties to the Repurchase
      Agreement;

    


    WHEREAS,
      as a condition to the Repurchase Agreement, Anthracite Capital, Inc.
      (“Anthracite”)
      has
      executed that certain Guaranty, dated as of July 20, 2007 (the “Guaranty”),
      made
      by Anthracite in favor of the Buyer Agent for the benefit of the
      Buyers;

    


    WHEREAS,
      pursuant to that certain Portfolio Margin Deficit Notice, dated as of July
      29,
      2008 (the “July
      Portfolio Margin Deficit Notice”),
      the
      Buyer Agent has (i) notified the Seller that a Portfolio Margin Deficit exists
      (the “July
      Portfolio Margin Deficit”)
      and
      (ii) requested that the Seller make a partial payment to the Buyer Agent,
      for the benefit of the Buyers in accordance with the Additional Terms Schedule
      attached hereto as Schedule 1 (the “Additional
      Terms Schedule”);

    


    WHEREAS,
      the July Portfolio Margin Deficit still exists and the Buyer Agent has agreed,
      subject to the terms hereof, to allow the Seller to pay the remaining balance
      of
      the July Portfolio Margin Deficit pursuant to a schedule of
      payments;

    


    WHEREAS,
      AHR Capital BOA Limited (“AHR”),
      a
      wholly-owned subsidiary of Anthracite, is party to that certain Credit
      Agreement, dated as of March 17, 2006 (as amended, restated, supplemented or
      otherwise modified from time to time, the “Credit
      Agreement”),
      by
      and among Anthracite as borrower agent (in such capacity, the “Borrower
      Agent”),
      AHR
      as a borrower, each of the borrowers from time to time party thereto (together
      with AHR, collectively, the “Borrowers”;
      the
      Borrowers and Anthracite, collectively, the “Anthracite
      CA Parties”)
      and
      Bank of America, N.A. as lender (in such capacity, the “Lender”;
      the
      Buyers, the Buyer Agent and the Lender, collectively, the “BOA
      Parties”);

    


    WHEREAS,
      pursuant to that certain Borrowing Base Deficiency Event Notice, dated as of
      July 29, 2008 (the “July
      Borrowing Base Deficiency Event Notice”),
      the
      Lender has (i) notified the Anthracite CA Parties that a Borrowing Base
      Deficiency Event has occurred (the “July
      Borrowing Base Deficiency Event”)
      and
      (ii) requested that the Borrowers make a payment to the Lender in accordance
      with the Additional Terms Schedule;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    WHEREAS,
      the Lender has agreed, subject to the terms of the CA Amendment (as defined
      below), to allow the Borrowers to pay outstanding amounts due to the occurrence
      of the July Borrowing Base Deficiency Event pursuant to a schedule of
      payments;

    


    WHEREAS,
      simultaneously with this Amendment, the Anthracite CA Parties and the Lender
      shall execute an amendment to the Credit Agreement (the “CA
      Amendment”);

    


    WHEREAS,
      the Seller has agreed to grant, pursuant to the terms of the Affiliate Security
      Agreement, dated as of the date hereof (the “Affiliate
      Security Agreement”),
      as
      collateral security for the prompt and complete payment and performance when
      due
      (whether at the stated maturity, by acceleration or otherwise) of the Anthracite
      CA Parties’ obligations under the Credit Agreement and the other Loan Documents
      (as defined in the Credit Agreement), a security interest in the
      Collateral;

    


    WHEREAS,
      the Anthracite CA Parties have agreed to amend and restate the Collateral
      Documents to grant, as collateral security for the prompt and complete payment
      and performance when due (whether at the stated maturity, by acceleration or
      otherwise) of (i) the Seller’s obligations under the Repurchase Agreement,
      including, without limitation, the Seller’s obligations to make the Repo
      Deferred Payments (as defined below), and (ii) Borrowers’ obligations under the
      Credit Agreement, including without limitation, the Borrowers’ obligation to
      make the CA Deferred Payment (as defined in the CA Amendment), a security
      interest in the Collateral (as defined in the Credit Agreement); 

    


    WHEREAS,
      the Seller, the Buyers and the Buyer Agent have agreed, subject to the terms
      and
      conditions of this Amendment, that the Repurchase Agreement shall be amended
      as
      set forth below.

    


    NOW
      THEREFORE, the Seller, the Buyers and the Buyer Agent hereby agree, in
      consideration of the mutual premises and mutual obligations set forth herein,
      the receipt and sufficiency of which is hereby acknowledged, as
      follows:

     

    SECTION
      1. Amendments.

    


    (a) Section
      2
      of Annex I is hereby amended by deleting the definition of “Termination Date” in
      its entirety and substituting in lieu thereof the following new
      definition:

    


    ““Termination
      Date”
shall
      mean September 18, 2010.”

    


    (b) Section
      2
      of Annex I is hereby amended by adding the following new definitions in proper
      alphabetical order:

    


    ““Additional
      Terms Schedule”
means
      the Additional Terms Schedule, attached as Schedule 1 to the Amendment and
      Agreement, as the same may be modified from time to time.

     

    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

     

    “AHR”
means
      AHR Capital BOA Limited.

    


    “Amendment
      and Agreement”
shall
      mean that certain Amendment and Agreement, dated as of August 7, 2008, by and
      among the Seller, the Buyers and the Buyer Agent.

    


    “Asset
      Attributable Loan Balances”
shall
      mean the term “Asset Attributable Loan Balances” as defined in the Credit
      Agreement.

    


    “CA
      Deferred Payment”
shall
      mean the term “CA Deferred Payment” as defined in the Credit
      Agreement.

    


    “Credit
      Agreement”
shall
      mean that certain Credit Agreement, dated as of July 20, 2007, by and among
      Anthracite Capital, Inc. as borrower agent, AHR as a borrower, each of the
      borrowers from time to time party thereto and the Lender.

    


    “Lender”
shall
      mean Bank of America, N.A.

    


    “Loan”
shall
      mean the term “Loan” as defined in the Credit Agreement.

    


    “Obligations”
shall
      mean the term “Obligations” as defined in the Credit Agreement.

    


    “Repo
      Deferred Payment”
shall
      have the meaning specified therefor in the Amendment, Agreement and
      Waiver.

     

    (c) Section
      5
      of Annex I is hereby amended by inserting the following new subsections in
      proper numerical order:

    


    “5.7 Notwithstanding
      anything contained herein to the contrary, and in addition to any other amounts
      due and payable from time to time under the Repurchase Agreement and the other
      Transaction Documents, the Seller shall pay to the Buyer Agent, for the benefit
      of the Buyers, the aggregate Repurchase Price for Purchased Assets as per the
      Additional Terms Schedule.”

    


    (d) Section
      14.1.16(ii)(A) of the Existing Repurchase Agreement is hereby amended by
      deleting it in its entirety and inserting in lieu thereof the
      following:

    


    “(A)
      involves the failure to pay any matured obligation or”

    


    (e) Schedule
      1-A of Annex I to the Existing Repurchase Agreement is hereby amended by
      deleting it in its entirety and inserting in lieu thereof a new Schedule 1-A,
      attached hereto as Exhibit
      A.

    


    SECTION
      2. Repo
      Deferred Payments.
      The
      Seller hereby agrees to make and additional payment to the Lender as per the
      Additional Terms Schedule.

     

    
      
        
        

      

      
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    SECTION
      3. Guarantor
      Affirmation.
      For the
      avoidance of doubt, the Guarantor hereby agrees and confirms that the Repo
      Deferred Payments constitute “Guaranteed Obligations” (as such term is defined
      in the Guaranty).

    


    SECTION
      4. Further
      Assurances.
      The
      Seller and Anthracite hereby agree to execute and deliver, or cause to be
      executed and delivered, from time to time, such additional instruments,
      certificates or documents, and take such actions as the Buyer Agent may
      reasonably request for the purposes of implementing or effectuating the
      provisions of this Amendment, the Credit Agreement, the other Loan Documents
      (as
      defined in the Credit Agreement), the Repurchase Agreement and the other
      Transaction Documents, or of more fully perfecting or renewing the rights of
      the
      BOA Parties with respect to (i) the Collateral and (ii) the “Collateral”, as
      defined in the Affiliate Security Agreement (or, in each case, with respect
      to
      any additions thereto or replacements or proceeds
      thereof or with respect to any other property or assets hereafter acquired
      by
      the Seller or Anthracite which may be deemed to be part of the Collateral)
      pursuant hereto or thereto. Upon the exercise by a BOA Party of any power,
      right, privilege or remedy pursuant to this Amendment, the Credit Agreement,
      the
      other Loan Documents (as defined in the Credit Agreement), the Repurchase
      Agreement and the other Transaction Documents which requires any consent,
      approval, recording, qualification or authorization of any Governmental
      Authority, the Seller and/or Anthracite will execute and deliver, or will cause
      the execution and delivery of, all applications, certifications, instruments
      and
      other documents and papers that the applicable BOA Party may be required to
      obtain from the Seller and/or Anthracite for such governmental consent,
      approval, recording, qualification or authorization.

    


    SECTION
      5. Conditions
      Precedent.
      This
      Amendment shall become effective on the date (the “Amendment
      Effective Date”)
      on
      which the Buyer Agent shall have received:

    


    (a) this
      Amendment, executed and delivered by a duly authorized officer of each of the
      Seller and Anthracite;

    


    (b) the
      Amended and Restated Guaranty, dated as of the date hereof, duly executed by
      the
      parties thereto, and in form and substance acceptable to the Lender in its
      sole
      discretion;

    


    (c) the
      Affiliate Security Agreement, dated as of the date hereof, duly executed by
      the
      parties thereto, and in form and substance acceptable to the Lender in its
      sole
      discretion;

    


    (d) the
      Additional Security Agreement (Germany), dated as of the date hereof, duly
      executed by the parties thereto, and in form and substance acceptable to the
      Lender in its sole discretion;

    


    (e) the
      CA
      Amendment, dated as of the date hereof, duly executed by the parties thereto,
      and in form and substance acceptable to the Buyer Agent in its sole
      discretion;

    


    (f) a
      certificate from each of the Seller and Anthracite, substantially in the form
      of
Exhibit
      B
      hereto,
      dated as of the date hereof, executed and delivered by a duly authorized officer
      thereof;

     

    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    

     

    (g) legal
      opinions of US, English and Irish outside counsel to the Anthracite CA Parties
      and the Seller, as applicable, which shall cover such matters incident to this
      Amendment and the other documents delivered in connection herewith as the Buyer
      Agent may require;

    


    (h) a
      non-refundable amendment fee payable by the Seller to the Buyer Agent, for
      the
      benefit of the secured parties, in an amount equal to 0.50% (50.00 basis points)
      of the Facility Amount; and

    


    (i) such
      other documents as the Buyer Agent may reasonably request.

    


    SECTION
      6. Representations
      and Warranties.
      On and
      as of the date first above written, each of the Seller and Anthracite hereby
      represents and warrants to the Buyer Agent and the Buyers that (a) it is in
      compliance with all the terms and provisions set forth in the Transaction
      Documents as amended hereby on its part to be observed or performed, (b) no
      Default or Event of Default has occurred and is continuing, and (c) the
      representations and warranties contained in Section 10 of the Repurchase
      Agreement are true and correct in all material respects as though made on such
      date (except for any such representation or warranty that by its terms refers
      to
      a specific date other than the date first above written, in which case it shall
      be true and correct in all material respects as of such other
      date).

    


    SECTION
      7. Limited
      Effect.
      Except
      as expressly amended and modified by this Amendment, the Existing Repurchase
      Agreement shall continue to be, and shall remain, in full force and effect
      in
      accordance with its terms; provided,
      however,
      that
      upon the Amendment Effective Date, all references therein and herein to the
      “Transaction Documents” shall be deemed to include, in any event, this
      Amendment. Each reference to the Repurchase Agreement in any of the Transaction
      Documents shall be deemed to be a reference to the Repurchase Agreement as
      amended hereby.

    


    SECTION
      8. Counterparts.
      This
      Amendment may be executed by each of the parties hereto on any number of
      separate counterparts, each of which shall be an original and all of which
      taken
      together shall constitute one and the same instrument. Delivery of an executed
      counterpart of a signature page to this Amendment in Portable Document Format
      (PDF) or by facsimile transmission shall be effective as delivery of a manually
      executed original counterpart thereof.

    


    SECTION
      9. Acknowledgment.
      Each of
      the Seller and Anthracite hereby acknowledges that neither the Buyer Agent
      nor
      any Buyer currently intends to extend the Termination Date of the Repurchase
      Agreement to a date later than the applicable date provided under this
      Amendment.

    


    SECTION
      10. GOVERNING
      LAW.
      THIS
      AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
      OF
      THE STATE OF NEW YORK.

     

    


    [SIGNATURES
      FOLLOW]


     

    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    

     

    IN
      WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
      executed and delivered as of the day and year first above written.

    


    ANTHRACITE
      CAPITAL, INC.,
      

    a
      Maryland corporation, as Guarantor

     

    


    By:
      /s/ Richard
      Shea                                                   


    Name:
      Richard Shea

    Title:
      President and COO

    


    ANTHRACITE
      CAPITAL BOFA FUNDING LLC,
      

    a
      Delaware limited liability company, as Seller

     

    


    By: /s/
      Richard
      Shea                                                   


    Name:
      Richard Shea

    Title:
      Director and Authorized Signatory

    


    
 

     

    

      Signature
        Page to Amendment and Agreement


    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    BANK
      OF AMERICA N.A.,
      

    as
      Buyer
      and as Buyer Agent

     

     

    
      By: /s/
        Jeffrey B.
        Hoyle                                               


      Name:
        Jeffrey B. Hoyle

      Title:
        Managing Director

    

     

    BANC
      OF AMERICA MORTGAGE CAPITAL CORPORATION,

    as
      Buyer

     

     

    
      By: /s/
        Peter J.
        Cookson                                               

      Name:
        Peter J. Cookson

      Title:
        Managing Director

    

     

     

     

     

     

    
      Signature
        Page to Amendment and Agreement

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

    

    Exhibit
      A

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    SCHEDULE
      I-A

    


    [Original
      Purchase Percentages and Applicable Spreads]


    


    
      
        
        

      

      
        A-1

        
          

        

      

      
        
        

      

    

     

    Exhibit
      B

    


    [Officer’s
      Certificate]

    


    
      
        
        

      

      
        B-1

        
          

        

      

      
        
        

      

    

     

    Schedule
      1

    


    [Additional
      Terms Schedule]

     

    
      
        
        

      

      
        S1-1